Letter Protesting the Treatment of Bradley Manning (Updated!)

by Kevin Jon Heller

As of March 19, 220 academics have signed the letter. (You can read the full list here.) Well done, colleagues!

Bruce Ackerman (Yale) and Yochai Benkler (Harvard) are circulating the following letter protesting the inhumane conditions of Bradley Manning’s detention and asking for law professor support. I have already signed, as have 103 other scholars. I encourage our academic readers to do the same. You can add your support at the email below.

Yochai Benkler and I invite members of the academic legal community to join us in signing the following statement, asking the Administration either publicly to justify, or end, the humiliation and mistreatment of Private Bradley Manning, the suspected whistleblower who is said to have leaked classified government documents to Wikileaks.

UPDATE:Our initial draft relied on news reports in the major news outlets. Comments we received since then lead us to think that two facts may be overstated in the original draft:

1. The instance of forced nudity overnight and in morning parade apparently occurred once. The continuing regime apparently commands removal of Pvt. Manning’s clothes and his wearing a “smock” at night.

2. The shackling apparently occurs when Private Manning is moved from his cell to the exercise room, but not while walking during the one hour of exercise. Other responses we have received suggest that there are claims of myriad other abuses that make conditions worse in various ways than we describe. We do not, and cannot, seek to adjudicate these factual claims. The conflicting responses underscore the need for a public, transparent, and credible response to the reported abuse, and cessation of those among them that cannot be justified.

Bradley Manning is the soldier charged with leaking U.S. government documents to Wikileaks. He is currently detained under degrading and inhumane conditions that are illegal and immoral.

For nine months, Manning has been confined to his cell for 23 hours a day. During his one remaining hour, he can walk in circles in another room, with no other prisoners present. He is not allowed to doze off or relax during the day, but must answer the question “Are you OK?” verbally and in the affirmative every five minutes. At night, he is awakened to be asked again, “are you OK” every time he turns his back to the cell door or covers his head with a blanket so that the guards cannot see his face. During the past week he was forced to sleep naked and stand naked for inspection in front of his cell, and for the indefinite future must remove his clothes and wear a “smock” under claims of risk to himself that he disputes.

The sum of the treatment that has been widely reported is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment, and the Fifth Amendment’s guarantee against punishment without trial. If continued, it may well amount to a violation of the criminal statute against torture, defined as, among other things, “the administration or application… of… procedures calculated to disrupt profoundly the senses or the personality.”

Private Manning has been designated as an appropriate subject for both Maximum Security and Prevention of Injury (POI) detention. But he asserts that his administrative reports consistently describe him as a well-behaved prisoner who does not fit the requirements for Maximum Security detention. The Brig psychiatrist began recommending his removal from Prevention of Injury months ago. These claims have not been publicly contested. In an Orwellian twist, the spokesman for the brig commander refused to explain the forced nudity “because to discuss the details would be a violation of Manning’s privacy.”

The Administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates. Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate Wikileaks founder Julian Assange in a conspiracy, or both.

If Manning is guilty of a crime, let him be tried, convicted, and punished according to law. But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pre-trial punishment. As the State Department’s PJ Crowly put it recently, they are “counterproductive and stupid.” And yet Crowley has now been forced to resign for speaking the plain truth.

The Wikileaks disclosures have touched every corner of the world. Now the whole world watches America and observes what it does; not what it says.

President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as Commander in Chief meets fundamental standards of decency. He should not merely assert that Manning’s confinement is “appropriate and meet[s] our basic standards,” as he did recently. He should require the Pentagon publicly to document the grounds for its extraordinary actions –and immediately end those which cannot withstand the light of day.

Jack Balkin, Yale Law School
Richard L. Abel, UCLA Law School
Peter Brooks, Princeton University
Joseph Fishkin, University of Texas School of Law
Lisa Hajjar, Department of Sociology, University of California
A. Michael Froomkin, University of Miami School of Law
John Palfrey, Harvard Law School
David Luban, University Professor, Georgetown University Law Center
Kwame Anthony Appiah, Princeton University
Alex Kreit, Thomas Jefferson School of Law
Lynn Henderson, Prof. (emerita), UNLV–Boyd School of Law
Seth F. Kreimer, University of Pennsylvania Law School
Christopher Jencks, Harvard Kennedy School
Thomas Pogge, Yale University
William Fisher, Harvard Law School
Jeffrey C. Alexander, Sociology, Yale University
Martin S. Flaherty, Fordham Law School
Tracy Lightcap, Political Science, LaGrange College
Hans Oberdiek, Philosophy, Swarthmore College
DeWitt Sage, Filmmaker
Robert W. Gordon, Yale Law School
Jason Mazzone, Brooklyn Law School
Brian Leiter, University of Chicago
Nancy Fraser, Philosophy and Politics, New School for Social Research
David M. Trubek, University of Wisconsin (emeritus)
Sanford Levinson, University of Texas Law School
Heidi Kitrosser, University of Minnesota Law School
Frank A. Pasquale, Seton Hall Law School
Mark A. Graber, University of Maryland School of Law
Frank I. Michelman, Harvard University
Todd Gitlin, Columbia University
Kim Scheppele, Princeton Univeristy
Marjorie Cohn, Thomas Jefferson School of Law
Jeffrey Schnapp, Harvard University
Judith Donath, Fellow, Berkman Center for Internet and Society
John Mikhail, Georgetown University Law Center
Charles Nesson, Harvard Law School
Scott Shapiro, Yale University
George Levine, Emeritus, Rutgers University
Robert L. Tsai, American University, Washington College of Law
George Fletcher, Columbia University
Cynthia Fuchs Epstein, CUNY Graduate Center
Michael Doyle, Columbia University
David Kairys, Beasley Law School, Temple University
Mitchel Lasser, Cornell Law School
Thomas P. Crocker, University of South Carolina
Hope Metcalf, Yale Law School
James Robert Brown, Philosophy, University of Toronto
Bo Rothstein Political Science, University of Gothenburg
Clifford Rosky, University of Utah
Aziz Rana, Cornell University Law School
Benjamin G. Davis, University of Toledo College of Law
Diane H. Mazur, University of Florida Levin College of Law
Daniel Kevles, Yale University
H. Robert Baker, Georgia State University
Adrian du Plessis, Wolfson College, Cambridge University
Agustín José Menéndez, Universidad de León and University of Oslo
C. D. C. Reeve, Philosophy, University of North Carolina at Chapel Hill
Chibli Mallat, Visiting Professor, Harvard Law School
Dan Markel, Florida State University
Louis Furmanski, University of Central Oklahoma
Julius G. Getman, University of Texas Law School
John Oberdiek, Rutgers School of Law-Camden
Kevin Jon Heller, Melbourne Law School
Matthew Pierce, University of North Carolina
John Clippinger, Berkman Center for Internet and Society
David Isenberg, Isen.com
Jane Mansbridge, Harvard Kennedy School
Ahmed I Bulbulia, Seton Hall Law School
Jeffrey Selbin, Yale Law School
Donald Rutherford, Philosophy, University of California, San Diego
Stanley Aronowitz, Sociology, CUNY Graduate Center
Margaret Levy Political Science, University of Washington
Mark Fenster, Levin College of Law, University of Florida
Daniel Markovits, Yale Law School
Peter Vallentyne, Philosophy, University of Missouri
Barbara Katz Rothman, Sociology, City University of New York
Peter Ludlow, Philosophy, Northwestern University
Sinan Dogramaci, Philosophy, University of Texas at Austin
Gillian K. Hadfield, University of Southern California Law School
Vilna Bashi Treitler, Baruch College, CUNY, Sociology, UNY Graduate Center
Mary Clare Lennon, Sociology, CUNY Graduate Center
Matthew Noah Smith, Philosophy, Yale University
Justin Fisher, Philosophy, Southern Methodist University
Dean Savage, Queens College, Sociology, CUNY
Cassandra Burke Robertson, Case Western Reserve University Law School
Ruth Mason, University of Connecticut School of Law
Paula Johnson, Alliant International University
Jeff A. Redding, Saint Louis University School of Law
Jeff McMahan, Philosophy, Rutgers University
Joan Vogel, Professor of Law, Vermont Law School
Claudia Angelos, New York University School of Law
Talbot Brewer, Professor, Department of Philosophy, University of Virginia
Benjamin S. Yost, Providence College
Jean Maria Arrigo, social psychologist, Project on Ethics and Art in Testimony
Elizabeth Wurtzel, attorney and author
Nathan Robert Howard, St. Andrews, UK
Lisa Guenther, Philosophy, Vanderbilt University
Phil Malone, Harvard Law School
Richard Markovitz, University of Texas Law School
Robert N. Johnson, Philosophy, University of Missouri

5 Responses

I agree with the concerns voiced in the letter about Manning’s conditions of confinement; the logical conclusion is that he is essentially being punished for the rather serious crimes with which he has been charged, but not yet convicted. In an ironic comment made on a military law blog (CAAFLOG), attorney Charles Gittins notes that he has a military client facing two murder charges who is confined under less onerous conditions: http://www.caaflog.com/2011/03/13/state-dept-spokesman-who-criticized-manning-confinement-treatment-resigns/#comments
That said, I question whether the letter raises the correct legal objections? To my reading the Supreme Court has never extended Bill of Rights protections to the military. This seems to be in part because the basic structure of the military justice system predates the Constitution, having essentially been adopted by Congress in 1776 in response to a request from George Washington and upon the specific recommendations of John Adams and Thomas Jefferson, suggesting (particularly to originalists) that the Bill of Rights was understood not to apply to military trials; and in part because the current Uniform Code of Military Justice provides statutory protections that allow almost all military law issues to be resolved without any reason to reach constitutional grounds. At most the Court seems to have sometimes assumed the applicability of Bill of Rights provisions; for example in Loving v. United States, 517 U.S. 748 (1996) it assumed the Eighth Amendment might apply to a capital trial of a serviceman for off-base homicides before concluding that there was no issue with the President, rather than Congress, specifying the aggravating factors necessary to award a death sentence if such factors were constitutionally necessary. But it has never actually held the Eighth (or the Fifth to my knowledge) Amendment generally applicable to the military.
With respect to Manning’s situation, it seems to me that the UCMJ is quite adequate to condemn the detention conditions without resort to constitutional provisions:
Article 13 (10 U.S.C. 813), for example, provides:
ART. 13 PUNISHMENT PROHIBITED BEFORE TRIAL
No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.
Cruel and unusual punishment is statutorily prohibited by Article 55 (10 U.S.C. 855):
ART. 55. CRUEL AND UNUSUAL PUNISHMENTS PROHIBITED.
Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
These provisions are given “teeth” by punitive Article 93 (10 U.S.C. 893):
ART. 93. CRUELTY AND MALTREATMENT
Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.
While I understand the popular value of appealing to the Constituion, personally, I would think that an approach based on the clearly applicable law (the UCMJ) would be less easily dismissed by the administration.

3.16.2011
at 9:01 pm EST Dave Glazier

professor heller
there is something that is troubling me. i remember someone arguing that his confinement is for his own good. because if he is “released” to the general population of the prison, he will be killed. is that true?

my second question is who is responsible for this? does the military have full authority and power here? what can the president or congress do?

3.17.2011
at 5:59 am EST nsomp

So that I understand….The assertion is that Manning doesn’t belong in Maximum Security and Prevention of Injury (POI) detention? Or is it that the regulations for POI detention are different for Manning? I don’t think most of us are privy to enough information to make the first estimation. The psychiatrist might have recommended removal from POI detention “months ago” but that doesn’t offer any revelations as to what happened subsequent to that recommendation. It might have been tried, and some sort of suicide attempt made…and that information would be private.

3.17.2011
at 9:07 am EST Liz

While I have been happy to join this effort, I would like to point out that this concern for Manning in 2011 and the acquiescence by a great many Americans to the three branches of government as bad and mostly worse treatment for the past ten years without redress of non-American and/or non-white (Padilla, Al-Kidd) detainees is something that I think it is useful for all to ponder in the current “post-racial” (supposedly) America. And this goes across our current Democrats and the past Republicans.
Best,
Ben

3.17.2011
at 11:38 am EST Benjamin Davis

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[…] Philip Crowley’s recent resignation from the State Department is ironic in light of his statements discussed on this blog in which he suggested that students should not fear that public discussion of Wikileaks will have negative career consequences. This week, Crowley was forced out as government spokesperson after criticizing the Pentagon’s treatment of Bradley Manning, who was detained for releasing classified material to Wikileaks. Crowley called the government’s abusive treatment of Manning “ridiculous and counterproductive and stupid,” a sentiment that has been echoed by many observers, including over 100 law professors. […]

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